how can we find out for sure? i asked kagro x, but there was no response. powwow’s suggestion was to try to find someone to question a senator on the issue:

What I am sorry not to see come out of my repeated explanations here, or from those of others elsewhere, is at least one reporter, somewhere, putting a Democratic Senator on the spot about the issue, with informed, pointed questions and follow-ups that would expose misdirection or sleights-of-hand in the Senate majority’s position about the filibuster – to, at a minimum, help advance the argument. But Party loyalists obviously don’t want to embarrass Party leadership or powerful people who grant them an interview – and most of the few non-MSM reporters with access to Senators who would be likely candidates to ask such questions qualify as Democratic loyalists, I think, and/or don’t feel well-enough informed to broach the topic with a skilled politician’s BS lying in wait. So, there’s that too.

anyway, here is the latest discussion thread with powwow in case it is of any use to you:

http://fdlaction.firedoglake.com/2010/02/03/republicans-seek-to-prove-that-the-senate-is-completely-broken-again/#comment-86961

Now THAT is what I would call hard-ball politics.

Seriously though, I don’t think Dems need to do that just yet.

I second this suggestion most happily, in anticipation, Jane.

Would you, please, selise?

DW

selise, if you do indeed decide to go ahead with that plan, I’ll happily do my best to clarify anything you need more information or feedback about, during the research and drafting of your diary, here in this thread. I assume the comments here will remain open for the next day or two, so I’ll check back regularly to look for any questions you may post. [Many thanks for even offering to take the project on. If you can actually get concrete feedback to your (obviously informed) questions from the Senate Parliamentarian on this topic, to boot, you should definitely make some news…]

For anyone who can’t yet get a clear vision of how a real filibuster would work, I reworded things somewhat in another stab at clarifying the issue in a comment (#45, I think) in dday’s front-page thread about Shelby today.

IF we ever do get everyone on the same page about the basic facts of Senate process and rules, I think the real issue of contention will be revealed to be the issue that undergirds selise’s preference for the real filibuster: more informed debate, not less, regardless of which Party it might favor.

Note, in that regard, that, based on this article recounting a Q&A that Klein held with an author writing a book about the filibuster (at least part of which I think Klein had read), since November 13, 2009 Ezra Klein has to have known that a “real” filibuster can still be forced in the Senate. I don’t know exactly what Klein’s been saying since then about the filibuster (though I’ve absorbed the fact that he seems to very much follow the Democratic Party leadership line), but I have the impression that he’s been strongly advocating rule changes to somehow ease cloture and/or impede real filibusters, rather than that Democrats actually start forcing real filibusters (if not saying that real filibusters themselves are no longer possible, as he was at one point).

The author in Klein’s Q&A made the following statement about the seven-week-plus filibuster of the 1964 Civil Rights Act:

The best example of this is the 1964 Civil Rights Act. It was the longest debate in the Senate’s history. But the majority wasn’t trying to wait out the Southerners. Instead, they just let them talk, and would send their guys down, and argue against them when they would, for instance, deny that lynchings happen in the South. This helped public opinion turn.

I don’t think that’s a very precise description, actually, although apparently the majority did make the long filibuster less onerous by not forcing all-night sessions, etc., and there was definitely some back and forth in the debate. Basically the majority committed to letting the Southerners talk themselves out, while also countering their arguments in the media, if not on the Senate floor. Until finally the majority filed, and passed with more than 67 votes, a cloture motion, to end the weeks-long filibuster. The dissertation I linked to in Jon’s recent thread is an excellent resource for learning how that debate and filibuster transpired – starting at about PDF Page 321, through PDF Page 326 for the actual cloture vote (a “gag rule,” as the Southerners called it, which passed 71-29), following which more than 100 pending amendments were finally addressed.

After final passage of the 1964 Civil Rights Act, Finley importantly notes:

[Georgia’s Richard] Russell fully believed that Hubert Humphrey’s handling of the civil rights fight ultimately played the largest role in limiting southern violence. By allowing the [Southern] caucus considerable time to debate the measure, the Minnesotan helped white southerners to recognize that their region had been accorded the necessary freedom to state its case in the court of public opinion. As a result, the defenders of segregation could not claim that the measure was railroaded through the Senate. Being an honorable people, the region’s white citizenry, Russell believed, would accept the chamber’s verdict because it resulted from a fair fight in which their intrepid senators had an unfettered forum to defend segregation.
– Keith M. Finley

Thus, the majority wasn’t afraid of giving the minority a platform to make their case to the best of their ability, even on a white-hot subject and for weeks at a time, because they were confident in the majority position and were willing to debate and defend it on its merits. Whereas if you read many of the warnings about allowing real filibusters today from Democratic Party backers, you see a fear and trepidation about giving Republicans any such platform to make their case to the public. That’s either unwarranted fear of letting the people make up their own minds, or concern that the Democratic position is somehow less popular, and can’t be strongly defended and argued to a successful conclusion (or it’s some other, even less commendable, motivation).

Eventually, a clearcut difference of opinion – between those who are most focused on protecting Party power, and those who are most focused on seeking the best legislative solutions regardless of Party – about who should be allowed to “get” Senate floor time to make their case to the public – regardless of whether or not they can win the day in actual votes – is probably where this debate about the “filibuster” is headed.

Sounds like a plan to me, selise.

I think your idea of going directly to the Senate Parliamentarian, if need be, is a great one. Knowing that you’ve had success going that route before – no need to try to pin down some slippery politician – only adds to its attraction.

I agree that the second ‘pro/con genuine debate’ component is a separate one that would likely only confusingly complicate a rule-focused diary at this time. Though I hope you don’t completely omit your own advocacy for debate: It’s something that many desperate for good ends tend to deride (‘move the question already!’ kind of impatience) – but when almost half the nation’s people passionately believe one thing, and the other, larger half really wants something that threatens those passionate beliefs, if that’s reflected in the Senate, as it should be, it seems likely to be counterproductive to argue that the larger group should – even if they numerically have the power and ability to do so – force their preferred policy, superficially-debated, on the opposing Senate minority, without at least first letting that minority, and thus the large portion of the nation it represents, fully and fairly vent its criticisms.

I will check back in again regularly tomorrow and also Monday to see what’s what (but please don’t feel any pressure from me to speed things up to keep to your proposed schedule, if you get bogged down). Since this comment thread may close by late Sunday or Monday, as a Plan B, I’ll suggest leaving your question(s) in whatever Emptywheel/bmaz thread is then current (with their forebearance), and we can pick up the discussion again there.

Good Luck!

Thanks for the feedback, bayofarizona. You are focusing on one of the key procedures at issue in the conduct of a “real” filibuster.

That CRS report (RL30360) is indeed the report I excerpted in this Seminal diary. I assume that’s where you saw the link, and so you don’t need me to repeat the rest of what I wrote in that diary and its comments.

There are two options for a cite to “Page 16” in that CRS report – the PDF page number, or the report page number (“CRS-16”). But both CRS-16 and PDF Page 16 of 27 (which is CRS-13) are discussing the cloture process (under Rule 22) – a process which is not relevant to an actual, non-Rule 22 filibuster. [See below for the page excerpt I think you meant.]

If you read my diary carefully, you’ll note that I do not say that suggesting the absence of a quorum is a “speech.” I say that requesting the absence of a quorum causes the Senator doing so to yield the floor, thereby making whatever comments he or she had been making before that request count as one of their two speeches on the question. Furthermore, repeated live quorum calls can not be made (enforceable by a point of order) unless intervening business takes place between them – and debate or speech does not qualify as such “intervening business.”

You are absolutely right that the “two-speech” rule applies to the current question in front of the Senate – meaning a motion to proceed, or an amendment, or the underlying bill or conference report itself. So there could indeed be multiple opportunities for one Senator to have “two speeches” (on each of those questions) if and when the Senate moves from one matter to another. But the majority has the ability (by withholding unanimous consent and using other parliamentary tactics) to prevent the Senate from moving from one question to the next if they care to do so. [As an example, during the weeks-long 1964 Civil Rights Act filibuster, something like 400 amendments were filed on the underlying bill, but none were called up or made a part of the filibuster until the filibuster had ended (after the minority had had its say, the majority finally filed a cloture motion on the underlying bill as introduced, which passed, and thus brought the filibuster debate to a close, at which point the Senate started debating and voting on some of those amendments).]

No single Senator has the right to set aside the pending business of the Senate to call up an amendment if another Senator objects, so the minority can’t do much to play games in that regard with the two-speech rule. [Note too that calling up an amendment, if no objection is made, causes the Senator to lose the floor, even if unanimous consent is received to dispense with its reading.] And a debatable question has to be formally before the Senate before anyone can attempt to “permanently debate” it.

Yes, 60 is now the fixed, minimum number for passage of a cloture motion, regardless of absences, etc. But, again, if you read more of my comments (in this case #45 in the dday Shelby thread I noted above in 35, might be most helpful), you’ll see, if you don’t already, that I am advocating a non-cloture process, where a simple Constitutional majority (51) is all that the majority needs to maintain during a real filibuster, whenever the absence of a quorum is suggested by those filibustering.

Something else to note about the “two-speech” rule is that Senate precedent plays an important part in how it is defined and enforced (such as the precedent that speech or debate does not qualify as “intervening business,” which must transpire between one live quorum call and the next). And the Senate majority, again, has the ability to prevent (most) qualifying “intervening business” from being presented, if it works the floor well.

Which reminds me that I should leave these important “Riddick’s Senate Procedure” links for selise, with a caution that it’s easy to get lost in all the separate PDFs (everyone in the Senate with access to a hard copy of this Riddick’s Manual is way ahead of us):

http://www.riddick.gpoaccess.gov/home.aspx?AspxAutoDetectCookieSupport=1

This link may be clearer and easier to use:

http://www.gpoaccess.gov/riddick/browse.html

[The cited CRS report links to different pages in Riddick’s Manual, and Riddick’s Manual is the source that the Senate Parliamentarian would be citing to on most questions that are not about simple Senate rules.]

I think this is probably the section that you were referring to as Page “16,” bayofarizona – from PDF Page 6 of 27 [CRS-3] in that CRS report:

Senators rarely invoke the two-speech rule because they generally do not believe that there is any need to do so. Sometimes, however, they may insist that the two-speech rule be enforced, as a means of attempting to overcome a filibuster. On such occasions, nevertheless, Senators often can circumvent the two-speech rule by making a motion or offering an amendment that constitutes a new and different debatable question. For example, each Senator can make two speeches on each bill, each first-degree amendment to a bill, and each second-degree amendment to each of those amendments as well.

In recent practice, the Senate considers that being recognized and engaging in debate constitutes a speech. The Senate, however, does not consider “that recognition for any purpose [constitutes] a speech.” Currently effective precedents have held that “certain procedural motions and requests were examples of actions that did not constitute speeches for purposes of the two speech rule.” These matters include such things as making a parliamentary inquiry and suggesting the absence of a quorum.3 Nevertheless, if a Senator is recognized for a substantive comment, however brief, on the pending question, that remark may count as a speech.

I hope it’s clear to you now, or will be if you read a bit further in some of the recent threads where we’ve discussed this, that I haven’t been saying anything contrary to that information in my comments or diaries about the real filibuster. Based on that excerpt alone, you were right to note the fact that the endless-amendment approach described there makes it sound like a feasible way to avoid the two-speech rule – but it is not as big a loophole as it sounds. [As an aside to selise, here, note that I don’t think that I’ve explicitly sourced the latter fact to anything except the actual (non-filibuster) floor debate on the health care bill – where, say, Grassley would ask to call up an amendment, and Baucus would object, so Grassley couldn’t get his amendment before the Senate. So a Riddick’s or other cite for that would probably be a good idea.]

Another FYI note for selise: You’ll probably run into references to the “Journal of Proceedings” and the “Morning Hour” that used to be regular parts of daily floor time in the Senate. But today the following is the absolutely routine method of dispensing with those opportunities for floor time or debate, as unanimously agreed to each day when the Senate adjourns:

Mr. REID. Mr. President, I ask unanimous consent that when the Senate completes its business today, it adjourn until 2 p.m., Monday, February 8; that following the prayer and pledge, the Journal of proceedings be approved to date, the morning hour be deemed expired, the time for the two leaders be reserved for their use later in the day, and the Senate proceed to executive session, as provided for under the previous order.

The PRESIDING OFFICER. Without objection, it is so ordered.

http://frwebgate.access.gpo.gov/cgi-bin/getpage.cgi?dbname=2010_record&page=S502&position=all

http://thomas.loc.gov/r111/r111.html

thanks for the heads up ecahn, i had my email closed but have now replied…. :)